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An Open Letter to CASA

Old 22nd Oct 2015, 03:52
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An Open Letter to CASA

Dear CASA,

This letter is not intended expressly or by implication as a criticism of any particular individual but, rather, is directed at CASA as an organisation. Nor does this letter proceed on the basis that all stakeholders in the aviation industry are squeaky clean or blameless and should not look to themselves sometimes when problems are encountered. I now turn to some general comments and observations concerning CASA and its relationships with individual stakeholders.

Stakeholders, as members of the tax paying public, expect public service authorities to do what their description suggests; serve. Furthermore, in an open democratic system there is a legitimate, genuine and reasonable expectation of accurate and timely provision of information and cogent explanations of decisions made by regulators. Being too busy is not a legitimate excuse for tardy response or inaction by a regulator. If CASA as an organisation or individual CASA officers are overworked then CASA should look to itself for improvement and not use overwork as an excuse of shortcomings, failings or the shelving of matters.

Civil Authorities must always demonstrate the highest of standards in order to set an example to those they regulate; however, could anyone honestly say that given CASA’s performance to date that it would meet the strict governance requirements - which CASA imposes on stakeholders - and that it would pass an audit similar to those which are imposed by CASA on industry?

It is often stated by some in CASA that CASA has no legislative obligation imposed on it to consider the financial impact on anybody which may result from the discharge of its duties under the Civil Aviation Act 1988 (the Act). Whilst there may be no explicit obligation imposed on CASA by the Act to consider financial ramifications of its decisions and imposition of regulations, it is worthy of note that Sec.16 of the Act states:

“In the performance of its functions and the exercise of its powers, CASA must, where appropriate, consult with government, commercial, industrial, consumer and other relevant bodies and organisations (including ICAO and bodies representing the aviation industry)”.

The inclusion of the words “commercial” and “consumer” would imply that CASA has a duty, after appropriately consulting, to consider the legitimate interests of both these groups. These interests would by implication include any financial impact regulation may have on them.

It is common sense that if CASA overregulates and fails to consider commercial realities its decisions may have a negative impact on the aviation industry. Government organisations generally, charged with administering industries, which are largely commercial in nature, should in a democratic and industrially competitive society, such as Australia’s, have regard to the impact of regulation on commercial operations but it should be no surprise that many in Industry now see CASA as the biggest single impediment to the economic development of civil aviation in Australia and indeed, due to the legislative quagmire of CASA’s own making, a threat to the safety of aviation.

Government organisations exist for the benefit of the populace but, in the view of many stakeholders, CASA has become a self serving juggernaut populated with, in some cases, under qualified but overly ambitious individuals who’s personal ambition clouds their professional judgment. Also, many in industry regard the qualifications and expertise of some in CASA, as falling short of the mark.

CASA is supposedly directed to be consultative with industry but in practice this does not appear to be the case. When CASA wishes to consult with stakeholders a Notice of Proposed Rule Making is published inviting responses. This form of consultation often does not reach the majority of stakeholders and even if it does many amongst the aviation community are intimidated by the relative complexity of the response process or do not have the time to respond in a manner which would attract due and proper consideration from CASA.

It is a legitimate expectation that citizens in a democracy are entitled to complain about their government, government authorities and those that work within them; however; many stakeholders perceive that when complaints are made to CASA these are not responded to in a timely manner, if at all, and the silence emanating from CASA is often deafening. Or when complaints about an individual officer’s performance or prejudice are voiced, notwithstanding assurances from CASA as to an imminent investigation, no response is received. On the other hand, when CASA perceives a wrong doing by an industry participant it is more that prepared to come down heavily on the alleged perpetrator with a brutally worded “please explain” in the form of a show cause notice, which if not answered within a short time frame, results in threats of a legal or administratively punitive nature. Industry and individuals are subject to “strict liability’ adherence to the regulations and the threat of criminal charges or hefty and punitive penalties but CASA has no such obligation or threats of sanctions.

Is CASA introducing change for change’s sake? Increasing work loads are being imposed on stakeholders in the name and purported pursuit of “safety” by CASA and as a result CASA is forcing many operators to take on excessive administrative burdens; however, CASA has not seen fit to publically release any quantitative or qualitative evidence to support such change.

When considering the ramifications of CASA’s relentless pursuit of “safety” one must ask: What is “safety”? This term is bandied about by all and sundry in CASA as the justification for all CASA does or does not do. The Act charges CASA with ensuring “safety” but in the context of CASA’s powers, “safety” is not defined by legislation. Therefore, when determining the meaning of “safety” one must look to the ordinary dictionary definitions and then consider those definitions within the framework of the common law. The Collins English Dictionary defines “Safety” as:

The quality of being safe; freedom from danger or risk of injury.

How does CASA interpret “freedom from risk or danger”? Is “freedom from” taken literally by CASA in so far as CASA interprets “freedom” to mean completely without risk or danger? Many stakeholders now dealing with the legislative mess of CASA’s own making would answer in the affirmative.

What does “safety” mean to the public? At common law, one of the tests used to determine meaning or understanding of a word is the “reasonable person test” or: what would the moderate or average person in the street think is a fair and reasonable definition in the context of aviation? Would the common person regard an act of engaging in an aviation activity (e.g. flying an aircraft) as capable of being completely free from danger or risk of injury? I think not as life is never completely free from risk or danger; however, CASA takes the view that anything and everything to do with an aviation operator’s business or an individual’s aviation activity, is subject to “safety” criteria simply by virtue of the fact that it all forms part of an aviation activity.

Unfortunately for the aviation industry and individual stakeholders, it appears that CASA has extended the concept of “safety” way beyond what a common person would think reasonable in the circumstances. A reasonable person would expect that when he or she boards an aircraft they are entitled to presume they will get off that aircraft without having suffered detrimental effects as a result of the experience of engaging in an aviation activity. This is where the concept of safety must be focused: the simple presumption of being able to engage in an aviation activity (e.g. travel on an aircraft) with a fair and reasonable probability there will be no adverse consequences to them as a result of engaging in that activity.

Whilst it is a given that the underlying methods and processes of an aviation industry participant must be structured so as to achieve the simple safety outcome described above, it is by no means a given that CASA’s methods and dictates to achieve a safe outcome are appropriate in all ways. CASA has elevated the pursuit of “safety” beyond the reasonable and introduced bureaucratic requirements so complex, convoluted and which envelop processes and procedures which can have no conceivable enhancement of safety outcomes, that the reasonable man would be astounded by their complexity and over-reaching scope and would question why it takes so much regulation to achieve such a simple goal.

Furthermore, would the common person think that excessive delay to address a simple request or application to CASA was enhancing safety and thus fair and reasonable? Would the common person think that returning an application form for a minor omission or mistake (failure to tick one box) which has been labouriously filled out by an applicant for an approval, licence or rating, enhanced “safety”? One could go on with numerous examples of failure to act or to react out of proportion to an error but the point is made. “Safety” is a concept, which should be simply achieved not, in its pursuit, a justification for bad governance or administration.

In the pursuit of CASA’s complex view and process of achieving “safety”, many industry personnel, now spend much of their time working on regulatory compliance both for present and future CASA regulatory demands. Many persons work after hours and weekends from home and ironically, some of this work may be dedicated to transitioning to a new fatigue management system! This increased work load is all down to CASA and its poorly conceived regulatory dictates and over-extended concept of “safety” and no plausible case has been publicly made to justify the onerous burden now placed on all those charged with compliance in industry, particularly in the GA sector who are largely without access to unlimited money to fund regulatory compliance.

The recent transition to a new suite of licensing regulations has proved problematic. Many persons affected by the transition to Parts 61, 141 & 142 of the CASRs have been the victim of errors and omissions by CASA licensing staff. Whilst it is appreciated by most that errors can and do occur, stakeholders in the aviation industry should not have to enter into battles with CASA to obtain or retain what is rightfully theirs. Nor should they have to put up with the sophistry and obfuscation, which seems to be the standard operating procedure for some of CASA’s office holders particularly those in higher echelons.

A common phrase heard by many stakeholders and iterated by CASA is “CASA must be satisfied”. There appears to be no consideration given to the fact that industry needs to be satisfied. This one-way flow of power contradicts basic human factors concepts, which CASA mandates industry must adopt and adhere to but the reality is: do as we say not as we do.

CASA often relies on and resorts to its own Manuals of Standards as justification for a particular decision to not allow some request, application or approval. It is worthy of note that stakeholders get little to no input to the drafting of these manuals, which are treated with the sanctity of religious texts by CASA and are thus accordingly followed without question.

Pursuant to the Act CASA should be consultative. Unfortunately, there is a saying still all to common in the vernacular: “Might is right”. CASA certainly promotes to stakeholders and the Act confirms, that it has the “might” but that does not and should not mean all CASA’s interpretations of regulations and dictates are correct, appropriate or morally worthy. Unfortunately, CASA is perceived by many as a dictatorial bully and a proponent of the “its my way or the highway” attitude. How does bullying (or at best, allowing the perception by industry of CASA as a bully) stakeholders enhance safety? The answer is it cannot.

Unfortunately, until such time as the Act is amended to remove the word “safety” from the authority’s name and include a section that specifically encompass the economic promotion of aviation CASA will, in all probability, continue with its largely unfettered and unsupervised powers to intimidate stakeholders into meekly accepting that its view is the only correct view.

To move forward in a positive way CASA must climb down from its self-elevated position of power and temper its hubris and return to a true and proper pursuit of a fair and reasonable simple concept of safety. It must now learn to re-engage (or to initially engage) with all stakeholders, in a real and meaningful manner, instead of alienating them and treating all as a potential adversary.

It is a regrettable situation that in the 44 years since the author took his first flying lesson there has been a noticeable decline of CASA’s (howsoever previously described) reputation in the eyes of industry. Such decline is in no small part due to the now prevalent perception of stakeholders that CASA is an agent of fear. An agency that relies on the rule of fear is to be lamented in a democratic system, which has been built on centuries of hard won accumulated wisdom in the form of common law, no small part of which is administrative law.

The fear factor predominates in so far as many GA businesses are suffering financially and individuals and companies are potentially criminalised every time they engage in an aviation related activity; however, contrary to well established principles of common law, CASA appears immune from findings of fault, criticism or accountability to the very people it is supposed to serve.

Freedom of speech is a hard won right but many stakeholders have the view that to question CASA or speak out publicly is to potentially bring down its wrath upon them.

Industry and many individual stakeholders are now totally frustrated with a regulatory system and regulator which is perceived as arrogant and largely dysfunctional and not able to discharge its statutory duties in a timely manner, if at all, and which has an overly idealistic, complex and out of touch concept of how to achieve “safety”; a concept which is in opposition to a reasonable man’s view of “safety”.

Without doubt some in CASA reading this letter will immediately refute what is claimed herein as mere ravings of a disaffected individual and should be ignored as being down right wrong but, if most of industry’s or stakeholder’s concerns are, in fact, falsely based then I call on CASA to do something forthwith to seriously and pro-actively address industry’s and those of individual stakeholders concerns and fix the negative perceptions of CASA before it is too late and there is no industry left to regulate. Doubtless, CASA will need to work hard at this to overcome the widespread negative perceptions of it.

It must be noted industry and individual stakeholders did not cause all the current problems and negative perceptions of CASA; CASA and only CASA did. CASA has failed and continues to fail the industry and the public at large. CASA’s problems are systemic and only a holistic approach will heal CASA’s ills.

Notwithstanding the objects of the Act, I would like to suggest that, in looking to cure CASA of its ills, the first place to start is to remove the word “safety” from the authority’s name. The word safety was added as a knee-jerk politically motivated reaction after a tragic couple of accidents back in the 1990s. The genesis of the current ills of CASA could be traced back to this time.

Whilst it is not suggested that an aviation authority should not have the safety of aviation operations as paramount in its goals, the removal of the word “safety” from the Australian authority’s name would help to remove CASA’s myopic concentration on the overwhelming minutiae of regulation which so sorely vexes stakeholders. A return to the acronym CAA would help to restore some sense of trust in the administration of civil aviation in Australia.

We stakeholders implore CASA to work with us in industry and not against us. We are not your enemy but we are made to feel like it. Get back to the real world and discharge the duty given to CASA to regulate the civil aviation industry but only with common sense, discretion, due and proper consideration as to the consequences of pedantic adherence to the minutiae of rules, overzealous actions or, indeed, inactions and always with an eye to its obligations and limitations under administrative law.

CASA must eliminate personal animosities directed at industry by some within it and most important of all, stop treating industry and individual stakeholders as potential criminals simply because we want to involve ourselves in aviation or a minor breach of regulations is alleged.

I have often heard it said by some in CASA that CASA is only enforcing the laws through powers conferred upon it by Parliament and therefore, by the people but, all in all, CASA should remember a simple fact: notwithstanding the fact of their being disallowable instruments, the regulations - which many in CASA like to wield as a weapon - were, in fact, not drafted directly by our Parliament but, by “The Governor in Council”, as delegated legislation. This sounds very posh and serious but, in reality, this means CASA drafts the regulations to suit itself and then those regulations or other rules sit on the parliamentary table as disallowable instruments which are hardly ever read by parliamentarians let alone disallowed. Consequently, CASA gets the regulations it wants without much fuss or questioning.

Once regulations are proclaimed as law CASA uses the argument that they are the democratic will of the people. However, Parliament did not intend the regulations to be used as CASA’s self-serving weapons of destruction against the very community which CASA purports to serve.

Unfortunately, CASA is welded into a safety paradigm of its own making. Changing this safety paradigm will not be easy as history tells us paradigm changes are fraught with angst and there is often much doom saying about change spouted by those whose jobs, reputations, self interest or positions of power may be affected.

Changing CASA and maybe the Act, is a debate we need right now and CASA needs to know that it has to happen and some in CASA may not like the prospect of it.

Finally, in conclusion and very importantly, the word "safety" needs to be removed from the the Civil Aviation Safety Authority name.

Your fellow aviation industry participant and sincerely
Lexair
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Old 22nd Oct 2015, 04:14
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CAsA is purely a National Regulatory Authority as defined by ICAO and our membership of that Organisation, CAsA can never be accused of being an Authority on Safe Civil Aviation.

The jingoistic name has been deceptive since its creation some 20 years ago.

Regulations written by legal people than bear little relevance to flight operations, punitive measures (strict liability offences) that discourage any sane person from any form of open and frank reporting of safety! occurrences.

Twenty seven or so years and how many millions of our dollars wasted to re-write the Regulations and what do we get, rubbish like parts 61 and 91 dumped on us.

I suspect the organisation is too broken to fix.

How many more "Forsyth Reports" does any government need before the relevant minister actually does something about the shambles and damage that is CAsA.

Tipsy
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Old 22nd Oct 2015, 04:27
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Your letter is well meaning but pointless. Sweet reason has been tried as a strategy for many years but has completely failed.

The only thing in my opinion that can save GA is a concerted political negative Campaign against Government members in margiNal seats.


There is no other way to get their attention.

The Government has 29 marginal seats. Take up a collection and merely threaten to run negative advertisements against the sitting member in each of these electorates at the next election and I Guarantee CASA will be eviscerated over night.

https://en.m.wikipedia.org/wiki/Post...election,_2013
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Old 22nd Oct 2015, 04:38
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Lexair,

Good intentions but your 3000 words are difficult to understand. The general population, People who haven't had dealings with CASA are the ones who need to understand the issues so that politicians will be prompted to change. You haven't said what CASAneeds to do to change.

My Letter to casa would have this as the body:

Be LogicalEvery decision should be based on a clear logic and a safety need. In introducing a new safety regulations it needs to be done in the most efficient way possible, otherwise the industry will not be able to afford the new regulation. Illogical regulations lead to reduced safety for the same cost.

Be Efficient. It is not acceptable to take 2 months to issue a private pilots license. It is not acceptable that it takes 6 months to process an AOC. The time taken for simple administrative matters costs industry money. These are your systems devised and implemented by you, CASA. If they are too complex it is because of your failings. Exemptions are no way to regulate and are a sign of CASA's failing to implement regulations properly. Fix this!!!

Be consistent The regulations you have devised are applied in an inconsistent manner across regions and CASA offices. This leads to a lack of respect for CASA from the industry and difficulty in harmonizing practices across the country. Pandering to the whim of specific individuals within CASA leads to illogical operating rules reducing efficient.

Be Collaborative Understand that the relationship between CASA and the industry is a symbiosis. Without the industry there is no need for a regulator. A healthy industry will lead to greater government resources for CASA. Listen to the feedback on new regulations and adopt it wherever it is possible to do so rather than rejecting it wherever it is possible to do so.
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Old 22nd Oct 2015, 05:39
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Both of your well meaning letters and suggestions miss the point which is "the vision thing". CASAs vision of itself and where it wants to take aviation is totally at variance with where the GA industry wishes to go.

There is no shared vision. Therefore you lose because the CASA vision takes priority over yours and therefore none of your well meaning and eminently sensible suggestions will penetrate.

I intend to write more on " Vision" later. It will suffice to say that without a clear shared vision of where the industry should go, all anyone is doing is uncoordinated bandaid applications.

I know people deride visions and mission statements but they are necessary precursors to a sensible regulation and business strategy.
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Old 22nd Oct 2015, 05:44
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Someone asked me the other day if I had a Part 61 licence.

My response, "Ha! No, I only applied for it in April"!

Dr
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Old 22nd Oct 2015, 06:08
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Someone asked me the other day if I had a Part 61 licence.

My response, "Ha! No, I only applied for it in April"!

Dr
Imagine you were an american pilot wanting to come to Australia, rent a plane and see a good bit of this country. You apply for a COV but because your FAA licence says "English proficient" and not "ICAO Level 6 Expert" you need an English test yet there is no one near you that can sign off that test. You also realize that you need and ASIC or an AVID and that these can only be applied for once you are in the country. About this time you realize flying in Africa will make for a better holiday.

How much money is lost to the Australian Aviation industry because of the difficulty in complying with the CASA red rope(its not just tape)?
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Old 22nd Oct 2015, 06:20
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No one, but from CASA's point of view your American pilot cannot cause an accident if he doesn't fly. That is part of their vision - total risk aversion.
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Old 22nd Oct 2015, 06:28
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but if there are no more GA aircraft in Australia CASA only need about half the staff.

look to biology. A parasite never kills off its host. If it does its source of sustenance disappears too.
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Old 23rd Oct 2015, 04:54
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NO_one, you forget Parkinsons Law: "Work expands to fill the time available to perform it."

I guarantee you that, not only will existing CASA jobs remain if GA was to disappear, but the staff numbers will actually continue to expand!

You think I'm joking? For my sins I was once a group general manager systems integration in the IT world and I've seen Parkinsons Law at work first hand!


https://en.wikipedia.org/wiki/Parkinson%27s_law
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